Citation Nr: 0020272
Decision Date: 08/02/00 Archive Date: 08/09/00
DOCKET NO. 99-04 582 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for service connection for body-wide
arthritis.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
K. J. Kunz, Counsel
INTRODUCTION
The veteran served on active duty from October 1951 to
September 1955.
This appeal comes before the Board of Veterans' Appeals
(Board) from an April 1998 rating decision of the St.
Petersburg, Florida, Regional Office (RO) of the United
States Department of Veterans Affairs (VA). In that
decision, the RO found that new and material evidence had not
been submitted to reopen a previously denied claim for
service connection for body-wide arthritis.
FINDINGS OF FACT
1. The veteran did not file a notice of disagreement with
the February 1959 rating decision that denied service
connection for arthritis.
2. Since the February 1959 rating decision, new evidence
that is relevant to the claim for service connection for
body-wide arthritis has been added to the claims file.
CONCLUSIONS OF LAW
1. The February 1959 rating decision denying service
connection for arthritis is a final decision. 38 U.S.C.A.
§ 7105 (West 1991).
2. Evidence received since the February 1959 rating decision
is new and material to the veteran's claim for service
connection for body-wide arthritis. That claim is reopened.
38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran is seeking to reopen a claim for service
connection for body-wide arthritis. Service connection may
be established for a disability resulting from disease or
injury incurred in or aggravated by service. 38 U.S.C.A.
§§ 1110, 1131 (West 1991 & Supp. 2000); 38 C.F.R. § 3.303
(1999). In the case of certain chronic diseases, including
arthritis, service connection may be presumed if the disease
became manifest to a degree of 10 percent disabling or more
within one year after separation from service. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1137 (West 1991 & Supp. 2000); 38 C.F.R.
§§ 3.307, 3.309 (1999).
In a February 1959 rating decision, the Los Angeles,
California, RO denied the veteran's claim for service
connection for arthritis. (The veteran has since relocated,
and his case is now being handled through the St. Petersburg,
Florida, RO). A rating decision becomes a final decision
when a claimant does not file a notice of disagreement with
that decision within one year after the decision is issued.
See 38 U.S.C.A. § 7105 (West 1991). The veteran did not file
a notice of disagreement with the February 1959 decision, and
that decision became a final decision.
The Board notes that in his April 1998 notice of
disagreement, the veteran indicated that he had never
previously applied for VA disability benefits and that he had
never received notification of the February 1959 decision.
However, the September 1958 VA Veteran's Application for
Compensation and Pension, completed and signed by the
veteran, is of record. Further, he was notified of the
February 1959 decision later that month at the last address
he had furnished for the record. In such circumstances, his
claim of nonreceipt is not sufficient to overcome the
presumption in favor of administrative regularity. See
Mindenhall v. Brown, 7 Vet. App. 271 (1994).
In September 1997, the veteran requested to reopen a claim
for service connection for arthritis throughout his body. A
final decision on a claim that has been denied shall be
reopened if new and material evidence with respect to that
claim is presented or secured. 38 U.S.C.A. § 5108 (West
1991). New and material evidence means evidence not
previously submitted to agency decision makers which bears
directly and substantially upon the specific matter under
consideration, and which is neither cumulative nor redundant.
38 C.F.R. § 3.156(a) (1999). The United States Court of
Appeals for Veterans Claims (known as the United States Court
of Veterans Appeals prior to March 1, 1999) (hereinafter,
"the Court") has ruled that, if the Board determines that
new and material evidence has been submitted, the case must
be reopened and evaluated in light of all the evidence, both
new and old. Manio v. Derwinski, 1 Vet. App. 140, 145
(1991). In order to be considered new, evidence must not
merely summarize or repeat evidence submitted in previous
proceedings. See Wilisch v. Derwinski, 2 Vet. App. 191, 193
(1992). New evidence may be considered material if the new
evidence, by itself or in connection with evidence previously
assembled, is so significant that it must be considered in
order to fairly decide the merits of the claim. 38 C.F.R.
§ 3.156(a) (1999); see also Hodge v. West, 155 F.3d 1356
(Fed. Cir. 1998).
In order to reopen a previously and finally disallowed claim,
there must be new and material evidence presented or secured
since the time that the claim was finally disallowed on any
basis (not only since the time that the claim was last
disallowed on the merits). Evans v. Brown, 9 Vet. App. 273
(1996). The February 1959 decision is the only final
disallowance of the veteran's claim for service connection
for arthritis. The basis for the disallowance was that
arthritis was not show by the evidence of record. Therefore,
the Board will address the veteran's request to reopen the
claim based on whether new and material evidence has been
submitted since February 1959.
The evidence that was associated with the veteran's claims
file prior in February 1959 included the veteran's claim for
benefits, his service medical records, and a report of
hospitalization in September 1958 at the VA Medical Center in
Long Beach, California. Service medical records show that
the veteran complained of weakness and pain in the knees for
a year in April 1954. He was initially assessed with
rheumatoid arthritis and was hospitalized for further
treatment. At the time of his discharge from the hospital in
July 1954, it was noted that a diagnosis of rheumatoid
arthritis was not established, as diagnostic testing was
essentially negative.
The 1958 hospitalization report noted that the veteran
complained of arthritis. X-rays were taken of the neck,
knees, and feet which revealed negative findings. The record
concluded that arthritis was not present. The evidence that
has been added to the claims file since February 1959
includes private medical records dated in the 1990s which
show diagnoses of arthritis of the hips, spine, shoulder,
wrists, and knees; certain records pertaining to a Social
Security Administration (SSA) claim for disability benefits;
and statements from the veteran.
The Board finds that the recent private medical records which
diagnose arthritis in many joints are sufficiently
significant that they must be considered in order to fairly
decide the merits of the veteran's claim for service
connection for body-wide arthritis. The Board thus finds
that the added evidence is new and material, and grants
reopening of the claim.
ORDER
The appeal to reopen a claim for service connection for body-
wide arthritis is granted; to this extent only, the appeal is
granted.
REMAND
As noted above, the Board has concluded that new and material
evidence has been received to reopen the veteran's claim of
service connection for body-wide arthritis. Now that that
question has been settled, the Board finds that the veteran
should be given an opportunity to submit evidence, testimony,
and argument on the underlying question of entitlement to
service connection, to include whether the claim is well-
grounded. In order to give him due notice of his opportunity
to submit such evidence and argument, and to allow the RO the
opportunity to adjudicate the claim on a de novo basis, a
remand is required. See Winters v. Gober, No. 99-7108 (Fed.
Cir. July 26, 2000); Bernard v. Brown, 4 Vet. App. 384
(1993).
Accordingly, this case is REMANDED for the following:
The RO should readjudicate the claim on a
de novo basis, considering all of the
evidence. In the event that the RO's
decision remains adverse to the veteran,
it should provide him and his agent with
a comprehensive Supplemental Statement of
the Case (SSOC).
After the veteran and his representative have been given an
opportunity to respond to the SSOC, the case should be
returned to the Board for further appellate consideration, as
appropriate. The purpose of this REMAND is to ensure
compliance with due process consideration. No inference
should be drawn regarding the final disposition of this
claim. The veteran has the right to submit additional
evidence and argument on the matters the Board has remanded
to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
action must be handled in an expeditious manner. See The
Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-
446, § 302, 108 Stat. 4645, 4658 (1994); see also 38 U.S.C.A.
§ 5101 (West Supp. 2000) (Historical and Statutory Notes).
In addition, the VBA ADJUDICATION PROCEDURE MANUAL, M21-1,
Part IV, directs the RO to provide expeditious handling of
all cases that have been remanded by the Board and the Court.
See M21-1, Part IV, 8.44-8.45, 38.02-38.03.
M. C. GRAHAM
Acting Member, Board of Veterans' Appeals